The lawsuit by four high court judges challenging their suspension by President Ian Khama for ‘misbehaviour’ suffered a double blow during the week, when the court of appeal (CoA) and the high court dismissed applications launched to support it. Three High Court judges Leatile Dambe, Singh Walia and Zibani Makhwade on Wednesday refused to recuse themselves from presiding over the suspended judges' case, just days after the CoA threw out an appeal by the Law Society of Botswana (LSB) seeking admission into the lawsuit as 'friends of the court' last Thursday. The suspended judges wanted the presiding judges to recuse themselves alleging that they could have been discussing the case with the Registrar based on the tone of his letter. The suspended judges also complained about the conduct of the panel of judges hearing the case, saying they were harsh against lawyers representing them during previous sessions. The judges dismissed the application, saying it had no factual basis, and that no conflict of interest occurred in the dealings between the Registrar and the applicants when conducting his administrative duties. Another application has been filed with court challenging the authenticity of the court record of previous sessions where the altercation happened, which the suspended judges claim has been omitted by the Registrar.
In the dismissed appeal, the suspended judges sought to review and quash Khama's decision to appoint a tribunal to investigate them for possible dismissal, suspend them and withhold their car benefit during suspension and the decision of JSC to report them to the police. The High Court dismissed the application, saying although LSB succeeded in showing cognisable interest required it had failed to show that it intends to bring matters of law or fact which the court may otherwise remain unaware of. "Mere interest in the case should not in itself be sufficient to allow joinder as an amicus curiae. If interest alone were to be found sufficient it may well open the floodgates of allowing amici to everyone who may show an interest in the case, of which there may be many, with the sole purpose of burdening the court with repetitive arguments it had heard before," ruled Lord Abernethy, a decision supported by Justice Stephen Gaongalelwe and Justice Brand. Lord Abernethy also found that LSB raised the very same points of law as those upon which the dismissed judges seek to rely on in the main application among them that they were subjected to unequal treatment, they were deprived of the benefits of audi alteram partem principle, that some of the decisions contested violate their freedom of expression and that judges are not to be deprived of their benefits during their term of tenure.
How it started
In August 2015 Chief Justice Maruping Dibotelo, after learning that the four judges were receiving housing allowance while occupying residential accommodation paid for by government, reported them to the Judicial Service Commission (JSC). The latter reported the matter to the police for investigation. When the judges became aware of these developments they, on August 12, 2015, wrote a letter to Dibotelo telling him they had lost confidence in him and asked him to resign failing which they threatened to motivate impeachment proceedings to remove him. A number of judges, among them the quartet, met in Mahalapye on August 15 and 16, 2015 to discuss matters raised in the letter to Maruping, which culminated in a petition to the JSC dated August 17 signed by 12 of the 21 high court judges. The petition noted dissatisfaction with the Chief Justice's leadership of the judiciary and expressed doubts as to his fitness and sustainability to continue performing this role. Following these events, on August 26, President Ian Khama suspended the four judges, withdrew their use of official vehicles and appointed a tribunal to investigate whether they should be fired for misbehaviour. It was then that the quartet rushed to the high court to interdict the decisions by Dibotelo, JSC and Khama. The case continues.